Examining the Role of the Ombudsman in Promoting the Right to Fair Administrative action in Kenya

Abstract

Fair administrative action is a core principle in public administration and a guarantee of fairness in decision making by persons whom power has been bestowed to exercise on behalf of others. It is also a human right guaranteed to every person by the Constitution of Kenya. This study sought to establish how the Commission on Administrative Justice (CAJ), also known as the office of the Ombudsman promotes the right to fair administrative action. The objectives of the study were threefold, namely, to examine ways in which CAJ promotes the right to fair administrative action in Kenya; to assess the extent to which the convergence of KNCHR, CAJ and NGEC promote human rights in Kenya, and to analyse the challenges and opportunities for CAJ in promoting the right to fair administrative action in Kenya. The study was conducted at the CAJ head office in Nairobi. Qualitative research design focusing on both primary and secondary data was applied. Primary data was collected by means of in-depth interviews administered to 30 respondents. Intensity sampling was used to select 30 cases on administrative justice that had been handled and concluded by CAJ between 2013 and 2018. An unstructured interview guide was utilised to obtain data from the respondents. Secondary data was collected by conducting document review of CAJ reports as well as other documents including legal instruments, books, articles, journals, publications and Acts of Parliament. The study found that CAJ has significant facilitative powers to enable it process complaints on violations of the right to fair administrative action and provide remedies to aggrieved persons. The study also found out that decisions of CAJ are enforceable as public entities are bound to comply with the decisions of CAJ unless they challenge the same in court, and if the facilitative powers are utilized exhaustively, they could deter violations of the right to fair administrative action. The study established that the three human rights institutions established in Kenya, namely KNCHR, CAJ and NGEC had not undertaken sufficient awareness creation for the public to be able to effectively utilize their services for human rights protection. The study further established that CAJ had more opportunities for enhancing its work in promoting the right to fair administrative action through the effective systems it has established and competent staff. The study recommends that CAJ should invest more in investigations when addressing complaints of violations of the right to fair administrative action. The study also recommends more targeted awareness initiatives by the human rights institutions to ensure optimum utilization of their services by the public.